Attorney Grievance v. Brisbon

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG NO. 60 SEPTEMBE R TERM 2003 ___________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND V. BRENDA C. BRISBON ___________________________________ Bell, C . J. Raker Wilner Harrell Battaglia Greene Eldridg e, John C. (retired, s pecially as signed ), JJ. ______________________________________ Opinion by Bell, C. J. ______________________________________ FILED: March 17, 2005 The Attorney Grievance Commission of Maryland (the Commission ), through Bar Counsel and pursuant to Maryland Rule 16-751,1 filed against Brenda C. Brisbon, the responde nt, a Petition for Disciplinary Action, in which it was alleged that she violated Rules 1.3 (Diligence); 2 1.4 (Communication); 3 8.1 (Bar Admission and Disciplinary Matters)4 and 8.4 (Miscondu ct),5 of the Rules of Professional Conduct, Appendix: Rules of 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approval of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.3 requires [a] lawyer [to] act with reasonable diligence and promptness in represe nting a c lient. 3 Rule 1.4 provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit th e client to make inform ed dec isions re gardin g the rep resenta tion. 4 Rule 8 .1Bar Adm ission and Disciplinary Ma tters An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar a dmission a pplication o r in connec tion with a d isciplinary matter, sh all not: * * * (b) fail to disclose a fact necessary to correct a misapprehension known by the person to h ave arisen in the matter, or k nowing ly fail to respond to a lawfu l demand for inform ation from an admiss ions or discip linary authority, exce pt that this Rule does not require disclosure of information otherwise protected by Rule 1.6. . 5 Rule 8.4 states: It is professional misconduct for a lawyer to: * * * Professional Cond uct of th e Mar yland Ru les, see Maryland Rule 16-812. We referred the matter, pursuant to Rule 16 -752 (a), 6 to the Hon orable Bonita J. Dancy of the C ircuit Court for Baltimore City, for hearing pursu ant to Rule 16-757 (c).7 The respondent having failed to respond to the Petition, an order of default, pursuant to Maryland Rule 2-613 (b),8 was entered against her. A lthough n otified, as required by Rule 2-613 (c), 9 that the order of (d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice . 6 Rule 16-752 (a) provides: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. 7 Maryland Rule 16-757 (c) provides: (c) Findings and conclusions. The judg e shall prepa re and file o r dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 8 Maryland Rule 2-613 (b) provides: (b) Order of Default. If the time for pleading has expired and a defendant has failed to plead as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default. The request shall state the last kno wn ad dress o f the de fenda nt. 9 Maryland Rule 2-613 provides: (c) Notice. Promptly upon entry of an order of default, the clerk shall issue 2 default had been entered and despite indicating that she likely would do so, the respondent failed to move to vacate the order, as required by Rule 2-61 3 (d).10 After the passage of more than 30 days, the hearing judg e conducted a he aring, after which she issued a Memorandum of Findings of Fact and Conclusions of Law, making findings of fact and drawing conclusions of law, as follows: This court finds that the averments made in the Petition for Disciplinary action in this matter are deemed admitted and the following findings of fact are established by clear and convincing evidence supported by exhibits admitted and the uncontroverted testimony of the Comp lainant, Oretha Tenezee Bailey and her present attorney, Jaime W. Aparisi at the hearing. Backg round Fa cts The Respon dent, Bren da C. Brisb on was a dmitted to the Maryland Bar on December a notice informing the defendant that the order of default has been entered and that the defenda nt may mov e to vacate th e order w ithin 30 days af ter its entry. The notice shall be mailed to the defendant at the address stated in the request and to the defendant's attorney of record, if any. The court may provid e for ad ditional notice to the def endan t. 10 Maryland Rule 2-613 (d) provides: (d) Motion by Defendant. The defendant may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. 3 20, 1997 and is presen tly decertified by Order of the Court of Appeals, dated August 25, 2003, for failure to comply with pro bono requirements pursuant to Md. Rule 16-903. BC Do cket No. 2003-2 35-4-6 The Complaint of Oretha Tenezee Bailey The Responden t was retained by Oretha T enezee Bailey for representation in connection with an application for asylum before the Immigration and Naturalization Service (INS). Respondent charged and collected a fee of approximately $ 1,000. The Respondent and Complainant attended an initial interview with an INS age nt. Citing material inconsistencies between the applicant s testimony and the application and/or other evidence, that agent referred the matter to an immigration judge. Respondent appeared with Ms. Bailey at a hearing before an immigration judge on March 20, 2002. That judge directed Comp lainant and Respon dent to administratively close the asylum application or refile it in proper form within sixty (60) days (by M ay 20, 2002). Complainant immediately asked Respondent to administratively close the asylum application. The Respondent failed to act on her client s behalf. Having failed to diary, [or] otherwise note the deadline date of May 20, 2002 o n her calendar, Respondent took no action on behalf of her client. As direct result of Respondent s failure to act by the May 20, 2002 deadline, the immigration judge rendered a decision and order finding against the application for asylum and ordered Com plainant s departure under voluntary terms until September 5, 2002 with an alternate order of removal to her country of origin, Liberia. That decision noted that the fact that the application was not re-filed or closed and no extension was requested 4 compelled the judge to find against the application. Due to Responden t s failure to act on [her] behalf, if an appeal from the adverse ruling of the immigration judge is not overturned, Complainant is to be removed to Liberia where she was exposed to potential se rious threats to her safety, personal liberty and health. Moreover, Complainant w ill not be able to reapply for asylum in the U nited States for a period of ten (10) years from the date of immigration court s order, that is August 6, 2002. Testimony from Complainant and her present attorney indicates the action of the Immigration Court resulting from Respondent s failure to re-file or close the pending application for asylum h ave not been overturned on appeal. The Complainant faces deportation after October, 2004 whenever her temporary protected status is revoked and not extended. The Respondent failed to competently prepare herself and her client for representation before the Immigration and Naturalization Service interview agent and immigration and judge on the hearing for asylum. Respondent faile d to d ilige ntly pursue the legal matter for which she was retained for the ben efit of h er client, Oretha Tenezee Bailey, and failed to follow and pursue the instructions and directions of he r client in the pursuit of that legal matter. The responde nt failed to ad equately explain and set forth the alternatives to her client or otherwise failed to respond to requests for information in connection with the representation of her client, Oretha Tenezee Bailey, specifically in connection with the 5 client s instructions to administrativ ely close the case on the application for asylum. When Complainant received no response to her inquiries regarding this matter, she believed Respondent had adm inistratively closed th e matter, w hen, in fact th e Respo ndent faile d to do anything. Upon notice of the allegations of the Complainant the Petitioner began a disciplinary investigation into the conduct of the Respondent and forwarde d the complaint to the Respondent by letters dated November 7, 2002, December 4, 2002, January 7, 2003 and January 31, 200 3. Although these requests for information were received by the Respondent she failed to respond to tho se requests for informa tion by Petitioner. Due to the Respondent s failures to respond to requests for information in connection with a disciplinary inv estigation an investigator w as assigned to conduct an investigation and interview the Respondent. At that interview the Respondent admitted to having received the previous requests for information sent by the Petitioner and admitted she failed to provide a timely respons e, or any respon se to those w ritten requests. T he Resp ondent fa iled to respond to a lawful demand for information from a disciplinary authority in connection with a disciplinary investigation. The court concludes based upon the findings established by clear and convincing evidence that the Respondent violated Maryland Rules of Professional Conduct 1.3, 1.4 (a) (b) and 8.4 (d). The petitioner filed Petitioner s Exceptions and Recommendation For Sanction, in 6 which it takes exception to the hearing court s failure to find that the respondent violated Rule 8.1 (b), as alleged. It argues that the findings of fact support such a violation, pointing out that the hearing court detailed the letters sent to the respondent, seeking a response to the complaint filed by the complainant, and reported that the respon dent conc eded both receiving the letters and failing to respond to them. From those findings, the petitioner submi ts, the co nclusio n that the respon dent vio lated R ule 8.1 ( b) nece ssarily follo ws. We review the findings of fact made by the hearing court to determine if they are based on clear and convincing evidence. Atto rney G riev. Com m'n v. Zdravkovich, 381 Md. 680, 694, 852 A. 2 d 82, 90 (2 004); Attorney Griev. Comm n v. McCoy, 369 Md. 226, 234, 798 A. 2d 11 32, 1137 (2002); Attorney Griev. Comm'n v. Powell , 328 Md. 276, 287, 614 A. 2d 102, 1 08 (1992 ); Attorney Griev. Comm'n v. Clemen ts, 319 Md. 289, 298, 572 A. 2d 174, 179 (1 990). See Md. Rule 16 -759 (b). 11 Thus, and in fact, the hearing court's findings 11 Maryland R ule 16-75 9 (b), as releva nt, states: * * * * (2) Findings of Fact. (A) If no exceptions are filed. If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determ ining ap propria te sancti ons, if a ny. (B) If exceptions are filed. If exceptions are filed, the Court of Appea ls shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757 (b). The Court may confine its review to the findings of fact challenged by the exceptions. The C ourt shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses. 7 of fact are prim a facie corre ct and will n ot be disturb ed unless th ey are show n to be clear ly errone ous. Attorney Griev. Comm n v. Ashw orth, 381 Md. 561, 575, 851 A. 2d 527, 535 (2004); Attorney Griev. Comm'n v. Garland, 345 Md. 383, 392, 692 A. 2d 465, 469 (1997) (citing Attorney Griev. Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A. 2d 503, 505 (1993)). Exceptions will be overruled when the finding s are no t clearly erro neous . McCoy, 369 Md. at 234-235, 798 A. 2d at 1137. The petitioner s exception with respect to the 8.1 (b) violation is sustained. The petitioner is correct in that regard, the respondent has conceded the violation. There is am ple evidence to support the other findings of fact made by the hearing court and, just as importa nt, those factua l finding s justify the conclu sions drawn f rom the m. With regard to sanction, the petitioner recommends that the respondent be indefinitely suspended from the practice of law. Revisiting the R ule violations charged a nd foun d, it submits: The serious consequences of Respondent s misconduct visited upon her client, compounded and aggravated by her failure to cooperate with the Petitioner militate[] the recommendation of an indefinite suspension of the Respondent from the practice of law. It is now so well settled as not to require citation of au thority, that the purpose of attorney disciplinary proc eedings is to protect the p ublic and n ot to punish th e erring a ttorn ey. We have also been clear, the public is protected when the Court imposes sanctions 8 comme nsurate with the nature and gravity of the violations and the intent with which they were committed. Attorney Griev. Comm n v. Awuah, 346 Md. 420, 435, 697 A. 2d 446, 454 (1997). Thus, the facts and circumstances of a given case are critical in the decision whether to impos e a sanc tion and , if so, w hat san ction. That decision, we have said, is informed and guided, howe ver, by ce rtain fac tors. Attorney Griev. Comm n v. Ashw orth, 381 Md. 561, 577, 851 A. 2d 527, 536 (2004). In addition to nature, gravity and intent, we identified: the attorney's prior grievance history, including whether there have been prior disciplinary proceedings, the nature of the misconduct involved in those proceedings and the nature of any san ctions impo sed, as we ll as any facts in mitigation ... whether the attorney is remorseful for the misconduct ...and the likelihood of the conduct being repeated . ... With respect to the latter factor, the likelihood of recidivism, we have held that the voluntary termination of the charged misconduct, when accompanied by an appreciation of the impropriety of having en gaged in it and remorse for having done so, may be evidence that the attorney will not again engage in such misconduct. Id. at 577-78, 851 A. 2d at 537 (citations omitted). The respondent did not respond to the Petition for Disciplinary Action and she never appeared in these proceedings. The nature of respondent s conduct is egregious and has cost her client an oppor tunity to pu rsue U .S. citizenshi p and possibly jeop ardized h er sa fety. Furthermore, the respondent s choice not to appear prevents this court from examining whether she is indeed remorseful. She, consequently, has not presented anything by way of mitigation for the Court to co nsider. M aryland Rule 16-757 (b)12 places on the respondent 12 Maryland R ule 16-75 7 (b) provid es: (b) Burdens of Proof. The petitioner has the burden of proving the averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation 9 the burden of establishing a matter of m itigation. The re simply is nothing in this record that could, or would, mitigate the respondent's conduc t. See Attorney Griev. Comm n v. Daskalopoulos, 383 Md. 375 , 384, 859 A. 2d 6 53, 658 (2004). Under the circumstances, we accept the petitioner s recommendation and order the respondent indefinitely suspended from the practice of law. See Ashw orth, 381 Md. at 563, 851 A. 2d at 52 7 (indefinite suspensio n, rather than disbarme nt, where , inter alia, respondent did not respond promptly to bar counsel s request for information and did not timely advise client of receipt of se ttlement che ck); Attorney G riev. Com m n v. M acDou gall, 384 Md. 271, 863 A. 2d 312 (2004) (sanction for failing to kee p estate representatives informed regarding estate and failing to respond to d isciplinary inquiry, indefinite suspensio n with right to apply for read mission after six ty days). IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COST S AS TA XED B Y THE CLER K OF T HIS C O U RT, INCLUDING COST S O F A LL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-71 5.C., FOR WHICH SUM JUDG MEN T IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BRENDA C. BRISBON. has the burden of proving the defense or matter by a preponderance of the eviden ce. 10